Citation Nr: 1436154
Decision Date: 08/13/14 Archive Date: 08/20/14
DOCKET NO. 11-22 076 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUE
Entitlement to a disability rating in excess of 20 percent for low back strain.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
S. Sorathia, Associate Counsel
INTRODUCTION
The Veteran served on active duty from February 1981 to November 1987 and February 1988 to February 1992.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
In May 2014, the Veteran's representative submitted a withdrawal of the Veteran's request for a Board hearing. The hearing request is withdrawn. 38 C.F.R. § 20.702(e) (2013).
The Board further notes that in February 2011, the RO denied the Veteran's claim for service connection for depression. In March 2012, the Veteran submitted a petition to reopen his service connection claim for depression. As the Veteran's petition to reopen has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013).
The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required.
REMAND
The Veteran was granted service connection for low back disorder in September 1993 and was assigned a 10 percent disability rating. The Veteran filed a claim for an increased rating for service-connected low back disorder in February 2007. A June 2008 rating decision increased the Veteran's disability rating for low back disorder and assigned a 20 percent rating effective February 2007, the date of the increased rating claim.
The Board notes that the Veteran has identified current and continuing treatment through Kaiser Permanente for his low back disorder during his August 2009 and December 2010 VA examinations. However, treatment records from Kaiser Permanente dated after January 2004 are not currently associated with the claims file. The claim must be remanded as such records are pertinent in determining the current level of severity of the Veteran's low back disorder. After associating pertinent outstanding private and VA treatment records with the claims file, the RO shall schedule the Veteran for a contemporaneous VA examination to assess the current nature, extent, and severity of his low back disorder.
Accordingly, the case is REMANDED for the following action:
1. Gather any outstanding records of VA treatment and associate them with the record.
2. Afford the Veteran an additional opportunity to submit any other information that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file, to include records from Kaiser Permanente dated after January 2004 and Peachtree Orthopedic Clinic dated after April 2003. Associate any available records with the claims file. Make at least two (2) attempts to obtain records from any identified source. If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession.
3. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals who have first-hand knowledge of the nature, extent, and severity of his low back symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence.
4. After physically or electronically associating any pertinent, outstanding records with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature, extent, frequency and severity of his low back disorder and any neurologic impairment related to his back disorder. The claims folder should be made available to and reviewed by the examiner.
The examiner should identify all back orthopedic pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's back, to include the extent of his pain-free motion after several repetitions.
In addition, if possible, the examiner should specifically state whether the back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes.
Further, the examiner should also discuss the nature and severity of any right and/or left-sided neurological impairment found to be present, to include sciatica, radiculopathy, or neuropathy.
The examiner must also state whether the Veteran has bowel or bladder problems or erectile dysfunction related to his low back disability.
The examiner must also indicate the impact of the Veteran's low back disability and any neurological impairments associated with the low back disorder found to be present on his ability to secure or follow a substantially gainful occupation.
All findings and conclusions should be set forth in an examination report.
5. Then readjudicate the Veteran's claim. If the benefits sought remain denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2013).